In a decision that could
bring the question of whether drug possession is legal or not in Argentina
to that country's Supreme Court, a judge in the in the province of Buenos
Aires has ruled that a tough provincial law penalizing drug possession
violates the South American republic's constitution. Penalizing drug
possession for personal use is barred under the constitution's privacy
provisions, Court of Guarantees Judge Luis Estaban Nitti ruled in the last
week of January. A second provincial judge has since followed in
Nitti's footsteps.

big news in Argentina

While drug laws have traditionally
been the bailiwick of the federal justice system in Argentina, a move last
year toward "defederalization" allowed provincial governments (and their
police forces) to get involved in the drug war. In Buenos Aires province,
which surrounds the capital city, hard-line provincial Gov. Felipe Sola
engineered a tough provincial drug law that went into effect in December.
That law was passed in the context of an anti-rave campaign conducted by
provincial Health Minister and sub-secretary for the Prevention of Addiction
Claudio Mate. It was also apparently aimed at the hordes of young
people who visit the province's Atlantic Coast beaches in the Argentine
equivalent of spring break. Since December, police in one provincial
town alone, Pinamar, have arrested at least 180 young people on drug possession
charges, according to the Buenos Aires newspaper Pagina 12. According
to figures released this week by the provincial Supreme Court, more than
1,700 people have been arrested province-wide on the new drug law.

"Up until last year, drug
crimes were punished only under federal law," said Silvia Inchaurraga of
the Argentine Harm Reduction Network (ARDA), which has been a leading force
pushing for drug law reform in the country. "But in Buenos Aires
province, they decided to create their own provincial drug law. ARDA
demonstrated against this law last year, saying it would only increase
the repressive power of the state and lead to corruption in the police
force, which is already known to be corrupt. We also said that this
law would only broaden the persecution of drug users."

The provincial Supreme Court
statistics suggest that Inchaurraga and ARDA were correct. In its
review of Buenos Aires province drug arrests, the court found that 84%
were for simple drug possession and 86% were busted for marijuana.
"This evidence shows that it's not true that the law is helping police
catch the big drug dealers, just punishing more drug users," she said.

Defense attorneys in Buenos
Aires province moved to challenge the law, despite believing that their
efforts would be fruitless in the provincial courts. "I now come
forward to ask that the law is declared unconstitutional, particularly
the section that reads 'the penalty will be from one month to two years
in prison when the small quantity and the rest of the circumstances suggest
unequivocally that the possession is for personal use," said Dolores district
court assistant public defender Veronica Olindi Huespi in her motion to
the court seeking to overturn the law.

Much to her surprise, Judge
Nitti agreed. "The scourge of drugs in our society must be combated
with all our strength and means, but without resorting to terror or easy
solutions that point in the direction of the person who possesses drugs
for personal use, while not focusing on the drug traffic, a sector where
unscrupulous people are filling their pockets," he noted in the case of
a youth arrested for possessing eight grams of marijuana and rolling papers
at a concert. "By punishing simple drug possession for personal use,
the state only adds to the problem of drug addicts or, in the case of recreational
drug users, by criminalizing them and inserting them into the penal system."

"We tried this believing
that they would tell us no and that we would go through successive stages
of appeal until arriving at the Supreme Court of the Nation," Veronica
Olindi Huespi, assistant public defender in the judicial district of Dolores,
told Pagina 12.

Nitti threw out 35 drug possession
cases, but allowed cases against five people caught smoking marijuana in
public to stand. Those cases were different -- and punishable --
Nitti ruled, because "the person is in public and in that manner is affecting
the public health," a portion of the decision that did not sit well with
Olindi Huespi.

ARDA conference display

Personal drug use "doesn't
hurt anyone except the user, in the same way that, for example, unprotected
sexual relations does," Olindi Huespi said. "If the law is unconstitutional,
it is so in all cases," she argued.

The issue is not a new one
in Argentina. Even during the rightist military dictatorships on
the 1960s, Argentine jurists upheld the right of people to use drugs, but
that changed with the rise to power of Jose "The Warlock" Lopez Rega, the
Rasputin-like behind-the-scenes advisor to then President Isabel Peron,
who pushed through a law that not only recriminalized drug possession,
but cast it as an offense against national security.

With the fall of the post-Peron
military government after the Falklands debacle, Argentine jurists returned
to their earlier reasoning, and in its 1986 Bazterrica decision, the Supreme
Court reaffirmed that the constitution's privacy provision protected drug
possession for personal use from the power of the state. But that
decision was overturned a few years later by a new Supreme Court packed
with judges appointed by then President Carlos Menem, and there matters
stand pending resolution of the current case.

While discontent over arresting
people for simple drug possession has been simmering in the Argentine judiciary
and some federal judges have simply placed drug possession cases on hold,
the case from Buenos Aires province appears to be the first destined to
provide a rehearing of the issue at the Supreme Court.

The judicial challenge to
Argentina's laws against drug possession runs parallel to an effort in
the national legislature to undo them. As
DRCNet reported during last fall's Buenos Aires conference on hemispheric
drug reform, two Argentina legislators working with ARDA, Deputy Eduardo
Garcia and Sen. Diana Conti, introduced bills that would decriminalize
-- or in the favored Argentine terminology, "depenalize" -- drug possession
for personal use.

"These are good bills, and
ARDA was involved in this, but we don't think we have the votes to pass
them," said Inchaurraga. "We think there is a better chance the Supreme
Court will declare the law unconstitutional. There are now lots of
judges saying they cannot punish drug possessors because it was for personal
use, that they think it is crazy to punish people for this, and we think
we have some friendly judges on the Supreme Court as well. If we
can get a case to the Supreme Court, we think we could get a ruling this
year that the law is unconstitutional."

The ruling won support from
prominent judicial and criminal justice figures in Argentina and neighboring
countries. "As a defense attorney, I have argued the same," said
Stella Maris Martinez, whom President Kirchner has nominated to be head
public defender for the country, in an interview with the Buenos Aires
newspaper El Pais. "It is unconstitutional to repress the possession
of small quantities of drugs for personal use because it does not affect
the public health. The decision of the judge in Dolores is very good.
Now we are ready to bring a case to the Supreme Court."

"The law is reactionary,"
said La Plata federal court judge Leopoldo Schiffrin in an interview with
Pagina 12. Federal judges don't like it and have acted to undercut
it, he said. "In general, federal judges have shown themselves very
reluctant to pursue proceedings in cases of possession for personal use."

While the growing criticism
of criminalizing drug possession in the judiciary is important, said Inchaurraga,
it is rulings from the bench that count. "It is one thing for judges
to say in a conference or in the classroom that they agree with depenalization,
but the crucial thing is when they make rulings to that effect."

Since Nitti ruled, another
provincial court judge, Daniel Viggiano in Lomas de Zamora, has followed
his lead. In a decision announced February 6, Viggiano declared the
drug possession law unconstitutional, saying that personal drug use did
not affect the public health. The Argentine constitution's Article
19 guarantees "the right to privacy" and "defines a sphere of individual
liberty that excludes the intervention of the state," he ruled.

At least one leading Brazilian
jurist looked on enviously. The Argentine provincial court decisions
build on the "remarkable" earlier Supreme Court decisions asserting the
privacy right under the Argentine constitution, said retired Court of Rio
de Janeiro Judge Luisa Maria Karam. "The right to privacy protects
the individual option for using drugs, or possessing them for personal
consumption, or doing any other thing that does not affect directly and
concretely the rights of others," she told DRCNet. "This right to
privacy is an expression of the principle of legality that submits the
exercise of state powers to the rule of law and guarantees individual freedom
as a general rule, situating prohibitions or restrictions as exceptions
that can only be established in order to guarantee the free exercise of
rights of others."

The rulings are also justified
under the "principle of hurtfulness," said Karam. "The individual
option for using drugs, or possessing them for personal consumption, or
doing any other private behavior, is also protected by the so-called principle
of the hurtfulness of the prohibited behavior, under which criminalization
is authorized only if a behavior is able to cause a concrete and significant
damage or injury to others."

While the Brazilian constitution
is not as explicit on the issue of privacy, said Karam, "a similar case
could and should be made under Brazilian law." Some Brazilian judges
are already deciding cases along similar lines, she said.

In Colombia and Peru, simple
drug possession is already decriminalized. Now, a case that could
return Argentina to those ranks may make its way to the Supreme Court.
If Brazilian jurists and defense attorneys would embrace similarly creative
thinking, the same could happen in South America's largest country.
In the Western Hemisphere, at least, it appears Latin America is leading
the way to fundamental reform of the drug laws.

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